Written paper Belgium_1.pdf - European Judicial Training Network

A. General introduction to the ethics of magistrates in Belgium
1.What is the difference between ethics and discipline?
The ethics and discipline are traditionally linked. The discipline is 'the strong arm' of ethics in
the sense that the discipline will sanction breaches of ethical standards. Where the ethics
intervenes at the level between the magistrate and the litigant and therefore must take into
account the public interest, discipline is more focused on the internal relationships within the
judiciary as a whole and within the courts that are part of it in particular. The ethics is the
totality of conduct , both written and unwritten, which constitute the professional obligations
resting on those belonging to a particular profession and which relate to both their internal
relationships as their relationship with a third party. The discipline is the instrument to
maintain the internal cohesion (e.g. breaches of the hierarchy and collegiality) or the
appearance to the outside (e.g. the degradation of the dignity of the profession) of the
judiciary. 1
Today in Belgium, and by extension in Europe, a change of mentality is going on. Previously,
violations of ethical standards were only sanctioned when the internal cohesion between the
members of the judiciary or the reputation of this order to the outside was affected. It was
essentially corporatist and certainly not intended for the litigant. At present the ethics consist
of positive rules of conduct, which the public confidence in the judiciary need to recover. The
ethical rules are framed in what society would expect of the magistrate. Positive ethics. 2 The
ethics leave the premises of the prohibition, and moves into the realm of the
recommendations.
The amended art. 404 of the Belgian judicial code is an example of this positive ethics. This
article contains the general ethical standard to which the behavior of the magistrate should be
compared, which although sounds rather vague and abstract 3 . By Act of July 7, 2002 a second
member was attached to this article: “The disciplinary punishments provided in this chapter
may also be imposed on those who neglect the duties of their profession and thus undermine
1 DERIEMAECKER, X., LONDERS, G., 'Deontologie en tucht', in Statuut en deontologie van de magistraat,
Brugge, Die Keure, 311-312
2 LAMON, H., Een nieuwe deontologie voor magistraten?, Juristenkrant 2008, afl. 13, 17
3 As will be proved later in the text, Belgium has a lot of written and unwritten deontological rules. The
unwritten deontological rules are derived from art. 404 Judical code. They can be grouped around 4 standards,
which will be explained later one in the text.
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